The Freedom of Expression and Information
Freedom of expression is the cornerstone of any democratic society. It is a basic human right to be enjoyed by all peoples, regardless of cultural, religious, ethnic, political formation or other backgrounds. Freedom of expression, pluralism and independence of the media, development of community newspapers and radio stations are crucial to the re-establishment of social bonds and to the reconciliation process. Freedom of expression is often regarded as an integral concept in modern liberal democracies where it is understood to outlaw censorship. Free speech is also protected by international human rights, notably under Article 19 of the Universal Declaration of Human Rights, although implementation remains lacking in many countries. The right to freedom of expression is not considered unlimited; governments may still prohibit certain damaging types of expressions. According to international law, restrictions of free speech are required to comport with a strict three part test: they must be provided by law; pursue an aim recognised as legitimate; and they must be necessary (i.e. proportionate) for the accomplishment of that aim. Amongst the aims considered legitimate are protection of the rights of others (prevention of defamation), the protection of national security and public order, health and morals. There are several theories with regards to freedom of expression. One observation is that people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces and unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. While this type of suppression is even more difficult to prevent than suppression, there are questions whether it falls within the ambit of freedom of speech, which is typically regarded as a civil liberty, or freedom from government action. It is also argued that freedom of expression is crucial in any democracy, because open discussions of candidates are essential for voters to make informed decisions during elections. It is through speech that people can influence their governments’ choice of policies. At the same time public officials are held accountable through criticisms that can pave the way for their replacement. There are suggestions that when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Therefore, it is often said this is the main reason why governments suppress free speech – to avoid accountability. To make things worse is the situation in my country, Tonga, where government is appointed and holds office at His Majesty’s discretion. I will later refer to the impact of such a political setting on free expression and the media as a case study. Alternatively, some believe that some restrictions on freedom of expression may be compatible with democracy or necessary to protect it. [For example, such arguments were used to justify restrictions in support of Nazi ideas in post-war Germany.] Another rationale is that freedom of expression is an essential aspect of personhood and autonomy. That is, “to engage voluntarily in a speech act is to engage in self-definition or expression. A war protester may explain that when he chants ‘stop this war now’ at a 1
demonstration, she does so without any expectation that he speech will affect continuance of the war, but rather he participates and chants in order to express himself publicly in opposition to the war. This war protester provides a dramatic illustration of the importance of this selfexpressive use of speech, independent of any effective communication to others, for selffulfilment or self-realisation. Another explanation is that freedom of expression is integral to tolerance, which some people feel should be a basic value in society. This principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters. The freedom of expression principle is left with the concern of nothing less than helping to shape the intellectual character of the society. Freedom of expression and opinion is a foundation without which many other basic human rights cannot be enjoyed. Allowing people to publicly investigate and report on human rights abuses makes it much harder for those responsible for them to hide behind a veil of silence and ignorance. Similarly freedom of expression makes a valuable contribution to other key areas of concern – good governance, rule of law and democracy. The media has a vital role in scrutinising and evaluating the actions of government, forcing them to manage resources and set policies in a transparent and equitable way. Governments have a duty to eliminate barriers to freedom of expression and information, and to create an environment in which free speech and free media flourish. Media professionals should be able to work freely without fear of intimidation, violence and imprisonment. Sadly there are still many countries around the world in which governments stifle dissent and criticism or fail to prevent other groups from targeting the media. The freedom to impart information can come under attack in a variety of ways and particularly infringe on the freedom of the media. Pressure on journalists poses a very significant threat. Such pressure is described as informal censorship referring to a variety of activities by public officials – ranging from telephone calls and threats, to physical attacks – designed to prevent or punish the publication of critical material. The right of journalists to protect their sources is also important in ensuring the free flow of information on matters of public interest. The media should be free to report on conflicts and public scrutiny in such situations is essential to controlling humanitarian and human rights abuses. Exclusion of the media is a very severe restriction on freedom of expression and information in this regard and restrictions should only be placed where there are clear safety concerns. Elections are other times when the freedom of the press to provide balanced and impartial information becomes critical and more valuable to repression by political actors. Now I would like to refer to the case of Tonga as a case study. Tonga, a South Pacific island, is the only remaining monarchy in the Pacific. The 130 year old Constitution provides that the King shall appoint the cabinet ministers as he so determines necessary. There are no set boundaries for this provision and practically the cabinet ministers would perform duty at his Majesty’s mercy. The composition of its parliament clearly depicts an imbalance of power. It is made up of all 14 cabinet ministers, 9 nobles of the realm elected amongst their 33 peers and 9 people’s representatives elected by universal suffrage. Criticisms of ths system stress that it is vulnerable to corruption. And those corruptions have, in the last ten to fifteen years, 2
become headlines and eye-catching stories of the newspapers, in particular the “Times of Tonga” – and the “Kelea’”, literally meaning “Conch Shell”. In reaction to their revelations of corruption in high government levels such as misuse of public funds, public property and authority, government was quite certain to shut them down. But after they had defeated in several but most court defamation and sedition cases where they were plaintiffs they were again desperate once more to shut down freedom of the press once and for all. Clause 7 of Tonga’s Constitution states, “It shall be lawful for all people to speak, write and print their opinions and no law shall be enacted to restrict this liberty. There shall be freedom of speech and of the press for ever but nothing in this clause shall be held to outweigh the law of defamation, official secrets or the laws for the protection of the King and Royal Family”. This clause has remained virtually unchanged since 1?75. Because it could not make the five bans it placed on the Times of Tonga newspaper stick, the present Tongan government wanted to amend the clause adding tight new conditionalities to the three existent limitations. The eight new conditionalities that were proposed are: in the public interest, national security, public order, morality, cultural traditions of the Kingdom, privileges of the Legislative Assembly, contempt of Court and commission of any other offence. Most of the new conditionalities were already addressed in existent legislations such as the Criminal Offences Act, the Order in Public Places Act, the Legislative Assembly Act so there was no real need for their entrenchment. But the proposal to introduce “in the public interest” and “cultural tradition of the Kingdom” would have virtually given the Tongan Government a blank cheque as to the limitations they can impose on the freedom of the media (and on the freedom of speech and opinion mind you) in Tonga. On 29 July 2003, the Legislative Assembly adopted by a final ballot of 13-10, the Media Operators Act which was intended to limit foreign ownership of a newspaper operation in Tonga 20%. It was quite obvious that this Act was designed to keep out “Times of Tonga” newspaper from Tonga if its ownership structure remained the same in 2004. This conclusion is drawn from the fact that the Foreign Investment Act adopted by the Legislative Assembly in 2002 allows for 25% foreign ownership of companies operating in Tonga and the fact that the foreign company that operates the Tanfull International Dateline Hotel in Tonga owns as much as 51% of the renovated hotel. The Tongan government had also submitted to the Legislative Assembly the Bill for an Act to Make Provision for the regulating of newspapers 2003”. This Bill proposed to provide for a licensing system for regulating the newspaper industry in Tonga. But it would have also provided government unrestricted authority to shut down any newspaper that it deemed to question its performance like the Times of Tonga does. Section 8 of the Bill proposed to give the Minister responsible, authority to determine standards for newspapers (with the consent of Cabinet) but does not provide for an opportunity for input from the industry, the reading public or civil society. Section 9 of the Bill proposed to give the Minister absolute discretion in granting, refusing or revoking a newspaper operator’s licence without any mechanisms for appeal.
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The Bill also proposed that proprietors of newspapers published outside of Tonga (such as Times of Tonga, Islands Business, New Zealand Herald) would have to apply for a separate licence in order to be sold in Tonga. Section 11 of the Bill proposed to give the Minister responsible power to unilaterally declare any newspaper published outside the Kingdom a prohibited newspaper because it interferes in domestic politics or lacks a commitment to honesty, fairness, independence and respect for the rights of others. In such instances, any person found in possession of more than 12 copies of the same issue of a prohibited offshore newspaper shall be presumed until the contrary is proved, that he has possession of them for sale and liable upon conviction to a fine not exceeding $10,000 or to imprisonment up to one year. Under section 15, purportedly no one was to be allowed to subscribe to any offshore newspaper that had been declared prohibited “except through a distributor who was to be authorised by the Minister”. Contravention of this section could have resulted in a fine not exceeding $1000 or imprisonment up to 6 months. However, in a joint effort of the people’s representatives to parliament and members of the pro-democracy movement seeking the constitutionality of the amendments CJ Ward ruled in (word I cannot read) that the amendments were unconstitutional and were therefore void. I thank you very much for your patience. Siosiua Po’oi Pohiva 20th November 2005 St. James Cavalier, Valletta, Malta
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